Bench Memos

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More on Jeffrey Toobin’s “Money Unlimited”


Some follow-up to my Part 1 and Part 2 posts on Jeffrey Toobin’s New Yorker essay on the Citizens United ruling:

1. On the Weekly Standard’s blog, Adam J. White demonstrates that Toobin’s story contains “easily disprovable mischaracterizations of the case,” from Toobin’s claim that there originally “did not seem to be a lot riding on the outcome” to his distorted account of the arguments that Citizens United’s lawyer, Ted Olson, initially advanced. As White asks:

Given Toobin’s inability of accurately handling straightforward, easily confirmable facts, why should anyone take at face value Toobin’s description of the Justices’ private discussions, and their draft opinions—especially when Toobin only describes, never quotes, those deliberations or draft opinions?  

2. Law professor, and election-law expert, Richard Hasen might have benefited from reflecting on White’s question. In a Slate essay,  Hasen calls on retired Justice Souter to make public his “secret draft Citizens United dissent.” The primary reason that Hasen offers is that Souter’s dissent “likely makes a top-notch argument for the constitutionality of corporate spending limits,” an argument that Hasen says is “directly relevant” to the Court’s impending action in a campaign-finance case from Montana.

Toobin’s breathless, Da Vinci Code-style revelation of “secret unpublished opinions” shouldn’t obscure the fact that Souter’s draft dissent was no more “secret” than every other draft opinion in a Supreme Court case. Souter would have circulated his dissent to the chambers of the other eight justices, and Justice Stevens would have had it available as a resource for the dissent he published after re-argument. If, as Hasen states, Stevens’s dissent “is somewhat meandering and ineffective,” then that’s the best that Stevens could produce with the benefit of Souter’s draft dissent. (Indeed, as Souter’s writing style could charitably be described as “somewhat meandering and ineffective,” it may well be that Stevens’s dissent reflects too much of Souter’s draft dissent.)

Further, with all the academic commentary on Citizens United in the more than two years since it was issued, are we really to believe that Souter’s draft dissent might contain some special insight, or have some special persuasive force, that no one else has been able to provide? The idea is highly implausible, if not absurd.

Hasen also argues that the “Souter opinion also might reveal just how far the conservative justices on the Supreme Court were willing to go to reach out and grab Citizens United.” Further, “Souter cares deeply about campaign finance—why not make it his continuing cause?”

Again, it seems to me farfetched that Souter’s draft opinion would contain anything that isn’t already set forth in Stevens’s dissent. Further, it’s a terrible idea to encourage retired justices (heck, why not active justices while we’re at it?) to make selective disclosures of confidential case information in order to advance their own preferred causes.


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